Finding no need to explain, the Supreme Court late this afternoon rejected the Trump Administration’s request to block California from counting thousands of mailed-in ballots that government officials claim might have been cast illegally by non-citizens. Federal and state laws forbid such voting.
In a one-sentence order, and with no sign of any dissenting votes, the Court refused to issue a temporary order to compel California election staff to segregate some 20,000 votes and avoid counting them until after it can be determined if they were legal, or not.
Trump’s legal aides have tried the same maneuver in Alaska and Washington State, so far with no success in lower courts. The Supreme Court’s California order probably determines the fate of those efforts, too.
What the Court has not done is to decide whether any illegal votes have been cast in any of those states, but it has spared state election officials — at least for the time being — from having to make a special effort to determine the ballots’ legality. State officials argued that being forced to take those steps would have seriously disrupted the election. California protects itself from non-citizen voting by requiring voters, at the risk of being charged with perjury, to claim U.S. citizenship when they register to vote.
The Trump team sent to the three states lists of people that federal officials contended might have voted in past elections as non-citizens. The legal question of what to do about this after the election tomorrow has not been answered by the Justices, but even the government has conceded that, if the ballots are not set aside, they can’t be checked once they are mixed in with other ballots that voters have sent in.
The segregate-without-counting attempt by the Administration was the boldest effort it has made during the current election cycle to improve Republicans’ chances. The government has scant evidence that voting by non-citizens occurs often, but President Trump personally has argued repeatedly that it a widespread problem, making election results unreliable.
The Supreme Court order came shortly after a Justice Department lawyer, in answering a judge’s question at a hearing in one of the vote-segregation cases that it was correct that the government’s lists of likely non-voters had a substantial error rate.
The Justices probably were not aware of that when they voted in the California case. But the Court was sufficiently satisfied that there was little basis for the Trump maneuver: it acted within a few hours after the government filed its request, and — notably — the Court did not even ask California for its views before issuing its order.
